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U.N. Drone Investigator: If Facts Lead to U.S. War Crimes, So Be It

United Nations special rapporteur Ben Emmerson tells Danger Room that accountability for drone strikes "is the central purpose" of his new inquiry.

Photo: United Nations

Ben Emmerson wants to be clear: He's not out to ban flying killer robots used by the CIA or the U.S. military. But the 49-year-old British lawyer is about to become the bane of the drones' existence, thanks to the United Nations inquiry he launched last week into their deadly operations.

Emmerson, the United Nations' special rapporteur for human rights and counterterrorism, will spend the next five months doing something the Obama administration has thoroughly resisted: unearthing the dirty secrets of a global counterterrorism campaign that largely relies on rapidly proliferating drone technology. Announced on Thursday in London, it's the first international inquiry into the drone program, and one that carries the imprimatur of the world body. By the next session of the United Nations in the fall, Emmerson hopes to provide the General Assembly with an report on 25 drone strikes in Afghanistan, Pakistan, Yemen, Somalia and Palestine where civilian deaths are credibly alleged.

That carries the possibility of a reckoning with the human damage left by drones, the first such witnessing by the international community. Accountability, Emmerson tells Danger Room in a Monday phone interview, "is the central purpose of the report." He's not shying away from the possibility of digging up evidence of "war crimes," should the facts point in that direction. But despite the Obama administration's secrecy about the drone strikes to date, he's optimistic that the world's foremost users of lethal drone tech will cooperate with him.

In conversation, Emmerson, who's served as special rapporteur since 2011, doesn't sound like a drone opponent or a drone skeptic. He sounds more like a drone realist. "Let's face it, they're here to stay," he says, shortly after pausing to charge his cellphone during a trip to New York to prep for his inquiry. "This technology, as I say, is a reality. It is cheap, both in economic terms and in the risk to the lives of the service personnel who are from the sending state.

"And for that reason there are real concerns that because it is so cheap, it can be used with a degree of frequency that other, more risk-based forms of engagement like fixed-wing manned aircraft or helicopters are not," Emmerson says. "And the result is there's a perception of the frequency and intensity with which this technology is used is exponentially different, and as a result, there is necessarily a correspondingly greater risk of civilian casualties."

A British avionics specialist works on an armed MQ-9 Reaper drone at Creech Air Force Base, Nevada, where the 432d Aircraft Maintenance Squadron, comprised of U.S. and U.K. airmen, operates.

Emmerson has zeroed in on the most heated debate about the drones, a subject around which there is little consensus and fewer facts, thanks to government secrecy. Do the drones kill fewer people than other methods of warfare? Or does their seeming ease of use make warfare easier to proliferate, and therefore kill more people – terrorist and innocent – than they otherwise would? There are several independent studies, mostly relying on uncertain local media reports from the dangerous places the drones overfly, and no agreement.

"When I think about the covert drones program, we're focused on the civilian impact," says Sarah Holewinski of the Center for Civilians in Conflict, which has studied the program. "But nobody really knows! The president doesn't know, I don't know, human rights groups don't know. They're taking place in remote areas. I'm looking forward to knowing from this inquiry what actually happens when a drone strike occurs."

Enter Emmerson. From now until May, his team will explore 25 drone strikes in the Mideast and South Asia and examine the "safeguards" that the three countries known to have used the lethal technology – the U.S., U.K., and Israel – place around the strikes. It won't settle the debate. But it will provide a deeper pool of data with which to inform it.

"The territories in which these technologies have been used thus far have typically been areas where there's a densely populated civilian community living in poorly constructed buildings that collapse very easily, often like a pack of cards or dominoes," Emmerson says. "And [they] cause damage beyond that, which would be the intended consequence or the anticipated consequence. Are those incidents resulting in [internal] investigation? Has any individual or any entity been held accountable? Have lessons been learned? Do these problems continue? Do they [subside], do they carry on or increase? These are the sorts of questions that we'll be trying to look at as best we can."

Emmerson is still finalizing his list of sample cases to investigate, as well as figuring out a game plan for getting to the dangerous places they occur. He doesn't anticipate producing "dossiers to satisfy a criminal legal standard" against drone operators. But Emmerson indicates that he's interested in looking at the so-called "double tap strikes," in which civilians are allegedly killed in drone strikes when they assist with clearing the wreckage of previous ones.

"I can't say I've seen evidence that would enable me to conclude that there is a case that war crimes have been committed, although of course that is an issue we are going to be looking into," he says. "In principle, events, for example, like double-tap strikes on first responders, or attacks on funerals could raise questions as to whether war crimes have been committed." Emmerson says he can't draw a blanket rule as to who's accountable for those strikes in the abstract.

The double-tap strikes are a seeming cousin of the "signature strikes," in which the CIA attacks people without knowing their names, because they seem to fit a pattern of terrorist behavior. "Civilians live in constant fear," Holewinski says. "Did I just stand next to a member of al-Qaida at a market? Does that mean I'm about to be targeted by a drone?"

But Emmerson thinks the Obama administration will play ball with him. Ironically, Brennan's appointment is one of his reasons for hope.

"I've had gentle signals that there may well be, under John Brennan's directorship at the Central Intelligence Agency, a desire to engage more publicly with some of the concerns that have been expressed," he says. Doing so is in Obama's interest, Emmerson believes, as his current stance of saying next to nothing about the strikes "leaves the debate space wide open to those who would argue that there are routinely disproportionate civilian impacts. Whether that is true or not is too early to say, and I wouldn't express any view on those questions without a very careful consideration of the evidence. But one thing one can say is that by refusing to engage in discussion, the administration has done itself no favors in gaining public confidence and winning hearts and minds. The reality is that the perception that drones cause disproportionate civilian casualties is one of the significant factors that is contributing to radicalization and violent extremism."

Not many drone observers are confident Obama will embrace Emmerson's review. "The drones program only exists at the moment they say it does and the next moment it doesn't," says Andrea Prasow of Human Rights Watch. "I assume Emmerson will run into this."

The early signs about official U.S. cooperation aren't particularly positive. The CIA flatly declined comment when asked. Pentagon spokeswoman Lt. Col. Anne Edgecomb said comment "would be premature" since the Defense Department hasn't "received a directive related to this UN inquiry." (She adds: "We use remotely piloted aircraft within the laws of war, precisely targeting military objectives while minimizing the loss of innocent life.")

Interestingly, one of the members of Emmerson's team is an American judge-advocate, Army Cpt. Jason Wright, whom Emmerson announced last week would participate in his private capacity. Wright declined to comment, but University of Texas law professor Robert Chesney identified him as one of the defense attorneys for 9/11 defendant Khalid Shaikh Mohammed. When asked about Wright's participation in the inquiry, Army Lt. Col. Todd Breasseale, a spokesman for the military commissions, indicated that Wright's participation might not be final.

"Capt. Wright's supervisory chain of command is still looking into the nature and the extent of his activities with the UN Human Rights Council to ensure that his contemplated actions will not be improper," Breasseale tells Danger Room.

Still, difficult as Emmerson's task may be, the first international investigation into drone strikes is a reality – one with which the U.S. will have to contend. Just as the world has to contend with the permanence of drones as a battlefield technology.

"I like technology I understand," Emmerson says. "And at the moment I don't understand enough about this technology. And neither does the rest of the world. And once we understand it, then we're in a position to understand whether or not we want to buy it. We don't just buy it because it's new."